Court Notes Hardship but Has Worries in Worker’s Bias Case

Several Supreme Court justices expressed sympathy Monday for a railroad yard worker who was transferred to a harder job and then suspended without pay during the Christmas season after she accused her supervisor of sexually harassing her.

Justice Antonin Scalia joined Justice Ruth Bader Ginsburg in recognizing the hardship that the 37-day suspension caused Sheila White as the Memphis, Tenn., forklift operator worried about how she would feed her children or buy holiday presents for them.

But the conservative trio of Scalia, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. also voiced concern about whether Congress intended to shield workers who filed sex or race discrimination claims from any changes in their jobs.

The justices were being asked to set the legal standard for evaluating the seriousness of changes in employment made by supervisors who might be angry over a worker’s discrimination complaint.

In his questioning, Scalia appeared to be trying to find a way to rule in White’s favor, while protecting employers from what already is an explosion in the number of retaliation complaints filed by workers.

Lawyer Carter Phillips, who represents the Burlington Northern Santa Fe Railway, warned justices that a decision favoring workers likely would make matters worse for business.

The railroad company asked the high court to overturn a decision by the U.S. 6th Circuit Court of Appeals, which found that suspending White for 37 days without pay and transferring her to a more physically demanding job were “materially adverse” changes in her employment.